Texas Supreme Court hears dispute over agency’s THC scheduling and delta‑8 enforcement

The Supreme Court of Texas heard argument in Texas Department of State Health Services v. Sky Marketing, No. 230887, which asks whether the department’s clarification of the state schedule of controlled substances — and related website guidance — went beyond the commissioner’s statutory authority and harmed businesses that sell hemp products.

Petitioners’ counsel told the court the case is essentially about criminal enforcement and argued the trial court lacks jurisdiction because the commissioner “does not enforce the Controlled Substances Act,” and therefore retailers lack standing to seek an injunction. Counsel cited the court’s Abbott decision and warned that the agency’s approach was not the sort of action that produces a prosecutorial injunctive interest. “The commissioner wants to make plaintiffs into, quote, ‘overnight felons,’” counsel said, quoting the clerk’s record to describe respondents’ stated fears of criminal exposure.

Respondents’ counsel framed…